Alexander Bickel's pathbreaking idea of the "passive virtues" attempted to explain and justify the Supreme Court's power to control its docket. He proposed that the Court's extensive discretion allows it to remain passive and avoid politically perilous cases, preserving its institutional legitimacy until such time as durable principles are at stake. This theory remains one of the most influential ideas in legal scholarship, but is dangerously incomplete. Discretion is a double-edged sword, empowering the Court not only to avoid politics, but also to engage in it. In other words, a policy-motivated Court can use its agenda-setting power to target highly politicized questions rather than to avoid them. This brings the Court into politics rather than keep it out.
This Article breaks new ground by showing how the same power that allows the passive virtues also permits the "active vices." Building on recent scholarship on the Court's targeting of specific questions for review, the Article explores the empirical and theoretical consequences of the active vices. At the heart of the empirical analyses are two new datasets that permit the first ever statistical analysis of the Court's shadow docket and the first test of its question-targeting activities on the merits. Specifically, the data strongly suggest the Court's agenda-setting practices make the Justices seem more polarized on the merits than they are on the shadow docket and that question selection increases politicization and divisiveness. The active vices also have important theoretical implications for critical issues confronting American democracy, such as judicial review and congressional gridlock.
Benjamin Johnson, The Active Vices, 74 Ala. L. Rev. 917 (2023).